Paula Phelan is a Family Lawyer with Specialist Accreditation in this area from the Queensland Law Society. She has been a lawyer for 22 years and is the director of Phelan Family Law, a Rockhampton legal firm specialising in Family Law only.
Best interests of the children
When a Family Law Court is asked to make Orders about parenting arrangements, it must consider the best interests of the child as the paramount consideration.
The fact that a teenage child is expressing a view of their own that they wish to live with mum and not dad or vice versa, does not on its own create any legal obligation on the Court.
There is nothing in the Family Law Act that says that children of any age can “make up their own mind” about what is in their best interests.
What is in a child’s “Best Interests”?
The main considerations for a Court are:
The benefit to the child of having a meaningful relationship with both parents; and
The need to protect the child from harm (physical or psychological) by being exposed or subjected to abuse, neglect or family violence.
The protection of children from harm is the most important consideration for a Family Law Court.
If a child is mature enough to have a view about the proposed arrangements, the Court can take those views on board. This does not mean that your child will be called to the Court as a witness in proceedings or even be present at Court during the proceedings.
The Court will often obtain evidence of the child’s views through a Family Report. This is prepared after the parties meet with a social worker or psychologist who provides a report following the interviews to the Court. They can speak with the children as well as the parents and will give a professional opinion as to what living arrangements they think are in the best interests of the children.
If appropriate, the psychologist or social worker can inform the Court of the child’s opinions about the arrangements.
Grandparents
The role of a grandparent is a special one.
It is understandable why grandparents become devasted when, often due to circumstances completely beyond their control, they are denied meaningful access to their beloved grandkids.
This can happen when there is a breakdown in the relationship with their son or daughter-in-law or even with their own child. This break down often coincides or follows a marriage or relationship break-up, involving the child parents.
A child’s extended family and particularly grandparents can be a very important part of a child’s life and can play an important role in their upbringing.
A grandparent does not have an automatic legal right to see their grandchild.
However, a child legally has the right to maintain a relationship and regular communication with those that are considered important to their welfare care and development, including their grandparents.
So, whilst you do not have an automatic right to maintain contact, your grandchild has a right to continue to spend time with you. If the child’s parents are acting in a way that denies the child’s rights, you as a grandparent can take action.
By law you are entitled to make an application to the court for a parenting order for access and regular contact.